Citation Nr: 0405066
Decision Date: 02/24/04 Archive Date: 02/27/04
DOCKET NO. 03-09 818 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
Whether new and material evidence has been received to reopen
a claim for compensation benefits pursuant to the provisions
of 38 U.S.C.A. § 1151 for decreased vision in the right eye.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
J. Hager, Associate Counsel
INTRODUCTION
The veteran had active service from September 1980 to
September 1983.
This case comes to the Board of Veterans' Appeals (Board)
from an August 2001 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Winston-Salem,
which denied the veteran's petition to reopen his previously
denied claim for § 1151 compensation for decreased vision in
his right eye.
Unfortunately, prior to deciding this appeal, the case must
be remanded to the RO via the Appeals Management Center (AMC)
in Washington, D.C. VA will notify you if further action is
required on your part.
REMAND
The Veterans Claims Assistance Act of 2000 (VCAA) was signed
into law on November 9, 2000. Pub. L. No. 106-475, 114 Stat.
2096 (2000). The VCAA was codified at 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), and
implementing VA regulations were published and codified at
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2003).
The Act and implementing regulations essentially eliminate
the requirement that a claimant submit evidence of a well-
grounded claim, and provide that VA will assist a claimant in
obtaining evidence necessary to substantiate a claim but is
not required to provide assistance to a claimant if there is
no reasonable possibility that such assistance would aid in
substantiating the claim. They also require VA to notify the
claimant and the claimant's representative, if any, of any
information, and any medical or lay evidence, not previously
provided to the Secretary that is necessary to substantiate
the claim. As part of the notice, VA is to specifically
inform the claimant and the claimant's representative, if
any, of which portion, if any, of the evidence is to be
provided by the claimant and which part, if any, VA will
attempt to obtain on behalf of the claimant. See Quartuccio
v. Principi, 16 Vet. App. 183 (2002) ("Quartuccio").
Quartuccio, like the case at hand, concerned a petition to
reopen a claim. In Quartuccio, the RO sent two documents to
the appellant noting which evidence would be useful to
support his petition to reopen. Id. at 186. The first, a
letter, described evidence potentially helpful to the
appellant but did not mention who was responsible for
obtaining such evidence. Id. The second, a statement of the
case (SOC), defined "new and material evidence" but did not
notify the appellant of information and evidence not
previously provided to VA necessary to substantiate the
claim. Id. The Court found these documents did not fulfill
VA's notification duties under the VCAA, which applies to
attempts to reopen claims as well as original claims for
benefits. Id. at 186.
In the present case, there was no letter sent to the veteran
mentioning the VCAA or explaining its meaning, even though
the VCAA took effect shortly after he filed his September
2000 petition to reopen and is applicable to his case. See
66 Fed. Reg. 45,620, 45,629 (Aug. 29, 2001) (VA will apply
VCAA implementing regulations to any claim filed before
November 9, 2000 but not decided by VA as of that date).
Moreover, no other document, including the post-VCAA August
2001 rating decision, February 2003 statement of the case
(SOC) and April 2003 supplemental SOC (SSOC), listed the VCAA
or its implementing regulations, or otherwise made reference
to these provisions. Cf. Valiao v. Principi, 17 Vet. App.
229, 232 (2003) (noting Board's failure to discuss whether
RO's decision and SOC satisfied VCAA requirements). The RO
thus did not fulfill its duty to notify the veteran under the
VCAA and the case must therefore be remanded for such
notification.
Accordingly, this case is REMANDED to the RO for the
following development and consideration:
1. Prior to making any additional
determination on the merits, the RO
should ensure that all notification and
development action required by the VCAA
and implementing VA regulations is
completed, including the new notification
requirements and development procedures
contained in 38 U.S.C. §§ 5102, 5103,
5103A, and 5107 (West 2002).
In particular, the RO should inform the
veteran of the VCAA, its meaning, and the
respective responsibilities of the RO and
the veteran under the VCAA and its
implementing regulations, in accordance
with Quartuccio and any other applicable
legal precedent. He should also be
requested to submit any relevant evidence
in his possession concerning his claim.
2. The RO also should obtain copies of
all of the veteran's VA treatment records
since August 2000, including, but not
limited to, any additional treatment or
evaluation he has received relating to
his right eye at the Hampton, Virginia,
VA Medical Center (VAMC). Any records
obtained should be associated with the
other evidence in the claims file.
3. Also ask the veteran to provide the
names and addresses of any private
clinical sources and approximate dates of
treatment or evaluation of his right eye
since October 2003, including, but not
limited to, those of Dr. Swendris of the
Office of Michael Gilbert, M.D., P.A.
Ask him to complete and return the
appropriate releases (VA Form 21-4142s)
for the medical records of any private
care provider he identifies.
Upon receipt of the appropriate releases,
request all private treatment records
indicated, if any, and associate all
received with the file. If any request
for private treatment records is
unsuccessful, notify the veteran
appropriately. 38 U.S.C.A. § 5103A(b)(2)
(West 2002); 38 C.F.R. § 3.159(e) (2003).
4. Then readjudicate the claim in light
of any additional evidence obtained. If
benefits are not granted to the veteran's
satisfaction, send him and his
representative an SSOC and give them time
to respond before returning the case to
the Board.
The veteran need take no further action until he is further
informed. The purpose of this REMAND is to obtain additional
medical information and to accord due process. No inference
should be drawn regarding the final disposition of the claim
as a result of this action.
The veteran has the right to submit additional evidence and
argument concerning the claim the Board has remanded to the
RO. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.43 and 38.02.
_________________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).